Barnhart v. Freeman Equipment Co.
| Decision Date | 20 February 1968 |
| Docket Number | No. 41489,41489 |
| Citation | 441 P.2d 993 |
| Parties | Tommy Lee BARNHART, Plaintiff in Error, v. FREEMAN EQUIPMENT CO., Inc., an Oklahoma corporation, and Rockwell-Standard Corporation, a foreign corporation, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. It is reversible error to sustain a demurrer to the evidence in a law action when there is any evidence reasonably tending to support the claim of the plaintiff.
2. The essential elements of a cause of action based on negligence may be inferred from all the facts and circumstances, and where the circumstances are such as to remove the case from the realm of conjecture and place it within the sphere of legitimate and rational inferences from established facts, a prima facie case is made.
3. Where a supplier, vendor or manufacturer supplies a purchaser with a device or instrumentality, and in exercise of ordinary care knows, or should know, if same is defective it will be dangerous to all who come in contact therewith during use for the purpose for which intended, the supplier, vendor or manufacturer owes a duty to ascertain the condition of the instrumentality by exercising reasonable care to see that it is safe for the use for which intended. A supplier, vendor or manufacturer who fails to exercise ordinary care to ascertain the true condition and safety of the instrumentality and chooses to sell without notice or warning of the dangerous characteristics thereof is liable for injuries proximately caused by use of the instrumentality.
4. Proof of negligence is unnecessary to establish liability for breach of warranty.
Appeal from District Court of Tulsa County; S. J. Clendinning, Judge.
Appeal by plaintiff, Tommy Lee Barnhart, from a trial court judgment sustaining separate demurrers to the plaintiff's evidence and dismissing action against named defendants. Reversed with directions.
Sanders, McElroy & Whitten, Floyd L. Walker, Tulsa, for plaintiff in error.
Hudson, Wheaton & Brett, Tulsa, for Freeman Equipment Co., Inc.
Alfred B. Knight, Tulsa, for Rockwell-Standard Corp.
Plaintiff in error was plaintiff in an action against three corporation defendants, including these defendants in error, to recover damages for personal injuries. At the close of plaintiff's case the trial court sustained separate demurrers to the evidence interposed by these defendants and dismissed the action as to each. Plaintiff has appealed from such orders and judgment. The sole issue involves the propriety of the trial court's action. Some amplification of the facts will be of assistance in determining this issue.
International Harvester Corporation builds truck-tractors for sale to the public. Rockwell-Standard Corporation designs and manufacturers components used in the automotive field. In 1961 these items included a center point steering axle and tie rod assembly sold to, and incorporated in the steering mechanism of International's trucks. Freeman Equipment Company was International's distributor and service representative located in the Enid, Oklahoma, area. At the time of this accident the plaintiff was employed as a truck driver by Consumers Cooperative in that city. Reference to defendants should be understood to include only Rockwell and Freeman for the purposes of this appeal. A companion case, involving plaintiff's appeal from a judgment in favor of International in Case No. 41,631, 441 P.2d 1000 is the subject of a separate decision.
On February 10, 1961, Consumers purchased from International through its distributor in Kansas City, Missouri, 23 truck tractors, of a type designated as 'Emeryville,' Defendant Freeman received a commission on the sale. Part of the steering mechanism of a motor vehicle consists of a tierod which connects the front wheels and moves back and forth as the wheels turn in steering. Rockwell designed and manufactured what was designated as the Timken center point steering (FE 970) axle, a part of which involved use of a solid steel tierod 1.63 inches in diameter. Upon putting the trucks in service Consumers discovered the solid tierod was so flexible as to cause the front wheels to shimmy and also produce excessive tire wear.
The Emeryville type truck was so designed that the left front shock absorber was mounted back of the axle on the bottom leaf of the left spring. The right front shock absorber was mounted in front of the axle. Turning of the front wheels resulted in an much as two inches forward movement of the tierod but, as originally designed the solid steel tierod did not come into contact with the bottom of the left shock absorber. The defective condition was reported to International on March 15, 1961, which then reported this to Rockwell. In an effort to correct the defective tierod Rockwell changed the original design and furnished a tubular steel replacement tierod 2.55 inches in diameter. Both defendant and International advised Consumers of the need for modification.
Rockwell furnished the replacements to International without cost under the warranty, but shipped the parts directly to Freeman on May 29, 1961, with whom International had made arrangements to handle installation at no cost to Consumers. Freeman began the work and completed the installation on twelve trucks, including Unit 465 on June 5, 1961. The tierod originally designed did not contact or bind upon the anchor of the left front shock absorber. Installation of the larger (2.55 inch) tierod resulted in further complications, because turning of the wheels caused the replacement to come into contact with and rub against the left front shock absorber. There was evidence that International knew the modified installation resulted in this interference between the tierod and the shock absorber as early as March, 1961.
In order to correct this difficulty Freeman made a second modification. The left front spring leaf which served as a shock absorber bracket was removed. A new hole was drilled one inch closer to the center, thus moving the bracket an inch forward. Completion of this modification required use of a longer bolt to rebolt the spring leaves because the leaves spread when disturbed. This second modification was made on some units upon installation of the new tierod, while on others the changes were made separately. Freeman installed the replacement tierod on Unit 465 (June 5, 1961) but did not move the shock absorber forward to effect clearance.
On June 17, 1961, in pursuance of his employer's business, plaintiff was driving Unit 465 on State Highway 10, approximately two miles north of Gore, Oklahoma. At this point plaintiff started to negotiate a left hand curve. When necessary to turn the wheels back to the right the truck could not be straightened out because the steering was stuck. In an effort to avoid an oncoming vehicle plaintiff '* * * gave it all I had to pull it around.' The truck came back too far and went toward the ditch, and at the same time plaintiff heard a 'real loud, sharp crack', which was the last thing he remembered. Plaintiff sustained serious, permanent injuries as the result of the truck overturning on the right shoulder of the highway.
Plaintiff charged the accident was caused both by negligence of defendants in respect to the design, installation and failure to inspect the steering system and front suspension of this vehicle; in making and delivering a dangerous instrumentality; breach of an implied warranty of fitness, and failure to warn plaintiff and his employer of the dangerous, latent condition of the truck, since in absence of warning plaintiff relied upon defendants' representations of fitness.
Defendants answered by general denial, plea of unavoidable accident, and special plea of plaintiff's contributory negligence.
The president, and other employees of Freeman, testified it was normal procedure when installing tierods to make inspection in order to determine whether the new installation functioned properly, and did not rub or come into contact with the steering assembly, or interfere with the steering of the truck. Freeman advised International's district service manager the tierod removed from Unit 465 after the wreck showed evidence of friction and wear marks, was dented, and the anchor eye on the left shock absorber was broken off; when the truck wheels were turned in negotiating the curve the tierod could have been thrown into the shock absorber bracket, causing the accident.
International's district service manager, previously experienced in mechanics, handled all warranty adjustments with dealers in the Oklahoma City district. International pays the dealer for correction of defects or failures coming under the warranty. Freeman had reported the tierod friction and wearing which had been noted in his report; examination of one unit disclosed approximately '5/32 of an inch or less' clearance between the tierod and shock absorber anchor, this test being made in March prior to this accident, but the inspection was visual without turning the wheels to ascertain whether there was clearance when the tierod moved; possibly there was some discussion within International organization relative to necessity for rearranging spring leaves to provide clearance between shock absorbers and spring leaves. When Freeman was employed to do modification installation no instructions were given to check the tierod clearance; the new tierod was suggested by International and Rockwell, but the only instructions given Freeman was to install the tierod, a normal procedure; the responsibility for the modification belonged to International who paid Freeman. This witness also testified modification by drilling the hole, to change position of the shock absorber bracket, was carried out by acceptance and payment to Freeman under warranty for the work. Witness also had recognized possibility that the spring leaves would have to be rearranged in...
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